What Happens When Zika Hits the Country With the World’s Strictest Abortion Laws?

Abortion is illegal in El Salvador—even in the midst of a public health crisis. But some feminists and doctors are fighting back.

December 14, 2016

Susanne, 14, became pregnant after she was raped in her village about an hour outside of San Salvador. (Monique Jaques)

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The Zika virus arrived in El Salvador in November of last year. It moved slowly at first, but by January at least 5000 cases had been confirmed, and the government was monitoring hundreds of pregnant women for possible fetal problems. (The first baby with microcephaly in the country was born in June.)

For feminists and activists, the virus brought along with it a sliver of hope: the possibility that Zika might provide a long-awaited challenge to the country’s ban on abortion. Abortion is illegal in El Salvador. It’s illegal when a malformed fetus doesn’t have a brain and can’t live outside the womb. It is illegal during an ectopic pregnancy, where the fallopian tubes can rupture and cause fatal bleeding. (“We had to act when the woman had signs of good quantity of blood inside her abdomen. That means in an imminent risk of death,” according the former head of obstetrics at the national maternity hospital.) It is illegal if a pregnant woman has cancer and needs treatment that might harm the fetus. Six countries ban abortion without exception (in addition to El Salvador, the Dominican Republic, Nicaragua, Chile, Malta, and the Holy See), but the country prosecutes the procedure especially aggressively. Women regularly face charges for abortion-related crimes, whether or not the evidence shows that they purposefully terminated a pregnancy. Doctors fear they’ll be arrested if their medical decisions harm an unborn baby.

Abortion is illegal in El Salvador when a malformed fetus doesn’t have a brain and can’t live outside the womb.

With Zika, the government seemed to scramble with how to square anti-abortion legislation with a disease known to cause fetal problems. In January, the Ministry of Health put out a statement advising women to delay pregnancy until 2018. “This generated indignation, not only among human rights people, but on a national level,” says Sara García, a member of Agrupación Ciudadana, an organization attempting to legalize abortion. “The real question is what the State will do to guarantee the health and life of a woman confronted with this situation,” one woman told a Spanish newspaper covering the disease. “You cannot continue to deny reality.” In the last few years the number of Salvadorians who want to see abortion legalized for women’s health reasons has been slowly growing. In 2012, 57 percent of Salvadorians wanted to see abortion legalized if the woman’s life was in danger; the next year, the number had risen to 74 percent. Zika seemed yet another opportunity to talk about the process of amending the law. A few weeks later, the minister of health gave a softer statement, saying that the abortion ban was a “difficult truth” and that the virus would illustrate the enormous risks that such a law caused. The question of abortion appeared again in newspapers and on op-ed pages; activists began to talk with the press about the possibility of a challenge to the law. “I think Zika will change things,” one gynecologist told me over the summer.

At the Cuscatancingo public clinic, Rosalba is being examined by the doctor. She is 40 weeks pregnant and this will be her second child. The doctor recommends she go to the hospital to induce delivery.

As of August, there have been 11,000 confirmed cases of Zika in El Salvador. In regional clinics, instances of Guillain-Barré syndrome, a symptom of the virus, have risen. But the prospect of change no longer seems so near. In a country where tropical disease is common, Zika has not had the media attention it has received in the United States. “The people are used to dengue, they knew that this Zika thing, it was the same thing as dengue,” says Arturo Castellanos, communications director for Agrupación. Doctors struggle to be heard about the disease. According to the Salvadoran health minister there have been 115 cases of microcephaly but only 4 associated with Zika. Yet in a normal year, according to the ministry, there are only 30 to 40 cases. “We know there’s an epidemic,” Dr. Miguel Guidos, president of the Salvadorian Association of Gynecology and Obstetrics, told me in an interview at his office. “The ministry is trying to stick to information that isn’t true, because this affects them politically.” Representatives for the health ministry have said that they support the legalization of abortion for therapeutic reasons. “Legal access to abortion will reduce maternal mortality and spending,” said Miriam González, who runs a center for women and children’s health and represents the ministry. But while rumors had abounded for months that the left-wing party would finally introduce a bill legalizing abortion, the opposite occurred: a young right-wing politician has tried to increase the penalty for abortion from 2 to 8 years to 30 to 50. All abortions, he said, should be charged as harshly as aggravated homicide, and doctors who performed them judged as assassins. In October, the left-wing party introduced a bill to expand abortion access for women who had been raped or whose health was at risk. But Salvadorans had already spent their summer listening to pro-life politicians pontificate on the dangers of the medical procedure.

***

One morning in August, I followed a gynecologist as she met with patients in the public hospital in a small town about two hours north of San Salvador. Many of the patients in the hospital were young women. More than a few were pregnant. This is a common sight in El Salvador, where more than a third of all babies are born to girls, some as young as 10. When young women came into the office, the doctor would suggest contraceptives, which the young women looked at with suspicion. On paper, contraceptives are legal and easily accessible in El Salvador. But in a country that is over 50 percent Roman Catholic and with a strong evangelical presence, right-wing politicians have repeatedly blocked proposals for comprehensive sex-education. Misinformation is common. A 2015 report by the World Bank found that adolescents regularly thought that contraception wasn’t sold to minors or that it caused health problems.

The last patient of the morning was Jennifer, a 14-year-old whose bump stretched out the fabric of her pink shirt. Her boyfriend, she told the doctor, was 21. They had started living together when she knew she was carrying his child. The doctor checked her vitals and prescribed her medication for a cold. She warned Jennifer about the dangers of bronchitis. When the meeting ended, the doctor filed a form and reported the couple to social services. It was the third underaged pregnancy the hospital had seen that day. The social worker seemed almost undisturbed by it, listing off the government agencies that would, he assumed, look into their case to determine whether legal action needed to be taken.

As the hospital emptied, I asked the doctor if she would consider helping the girl terminate her pregnancy. We had met weeks earlier in New York and I knew that she believed in abortion. In her private practice, she would consider it, she said. There, she could easily give a young woman a pill. But in a public clinic, she was afraid someone would report her. She wouldn’t dare suggest an abortion to a teenager. “I don’t want to go to jail,” she said.

A young right-wing politician has tried to increase the penalty for abortion from 2 to 8 years to 30 to 50.

Doctors fear retribution for any procedure that might harm a fetus. “In 1998, there was a campaign by authorities from the ministry of justice working to try to reach women who had an abortion,” recalls Dr. Guillermo Ortiz, former head of the obstetrics at the National Maternity Hospital. “They sent us a memorandum that said you had to notify this telephone number if a woman comes for an illegal abortion.” Women found guilty of aborting face two to eight years in prison, while health professionals face six to twelve. No doctors have ever actually gone to jail, according to Garcia, but the ban curtails the kind of services they can provide. For many doctors, this means delaying necessary treatment. “For example, if we have a woman with a high-risk pregnancy, we have to wait until the risk is very high and she is immediate risk of death,” says Ortiz. At the same time, women don’t want to go to hospitals for fear they’ll be turned in, says Guidos. 74 percent of complaints against women for gynecological crimes come from public or state hospitals. For the country as a whole, the result is deadly. El Salvador’s rates of maternal mortality are higher than average in Latin America. Suicide is the leading cause of death among teenage girls.

***

Agrupación estimates that 129 women were arrested for abortion-related crimes between 2000 and 2011, the last year for which they have published data. Many of these women did not provoke abortions. They suffered miscarriages or obstetric emergencies like stillbirths. The state barely makes any distinction. “There’s an obscurity and judicial uncertainty about abortion in El Salvador,” says Dennis Muñoz, a lawyer for Agrupación who defends a number of women who have been arrested for miscarriages. Muñoz notes that in El Salvador the word for miscarriage and abortion is the same in Spanish—aborto—and a hazy understanding about the process, verging on willful blindness, undergirds the state’s approach to women’s health.

Most of these women are poor. Most lack an education. Teodora del Carmen Vásquez was 9 months pregnant and working as a cafeteria worker when she felt contractions and called an emergency line. It was raining, and the services took hours to come. She went into the bathroom, thinking she had to pee. As she sat down, she lost consciousness. She suffered a stillbirth. When she awoke, still in the bathroom, the police were knocking on the door. They handcuffed her and took her to the hospital. “Why did you do it?” they asked. The state then charged her with aggravated homicide and sentenced her to 30 years. She’s been in jail for 9. She is 33 years old.

“I haven’t accepted my sentence,” Vásquez told me. “One knows when one has committed a crime.” We were sitting in the jail at Ilopango, about an hour east of San Salvador. The prison administrator had insisted we do the interview in a courtyard in front of the prison itself; the crowded cells—where I had heard that 250 women slept in a space meant for 100—were only visible in glimpses through the gates. A representative from the prison sat with us, dozing off and checking her phone. One sister visited monthly, Vásquez said, but her other siblings came rarely. Her son could only see her once a year, when he would draw in a notebook she kept with her in her cell. When talking about her dreams of becoming a lawyer and helping other imprisoned women, Vásquez was bold and forthright. She lowered her voice when she talked about the details of her case.

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Vásquez’s case has gained international attention; she’s literally a poster woman for the way the Salvadorian government treats women’s health. Agrupación has brought attention to cases like hers by filing appeals suits and publicizing the misinformation that surrounds them. They work with Amnesty International, the Center for Reproductive Rights and other international organizations. (In jail, Vásquez goes by “Helen” so no one will recognize her from the campaigns petitioning for her freedom.) In their legal briefs, they’ve made clear how poorly the state deals with natural processes. The police often fail to investigate possible birth complications and ignore basic medical evidence like blood pressure. The forensics recall witch trials. To test whether the child was born alive, state forensic teams place its lungs in water. If the lungs float, the thinking goes, they have air in them, and the infant breathed and lived.

This is what happened in the case of Maria Teresa Rivera, a 28-year old working in near-poverty as a seamstress. In November 2011, she, too suffered a stillbirth. She hadn’t known she was pregnant; she had been bleeding regularly. The court refused to believe this, however, and cited as evidence a statement from her manager saying he knew she was pregnant in January 2011, eleven months earlier. The autopsy showed that there had been no evidence of trauma to the baby and stated that it had died from perinatal asphyxiation, which can happen before or during birth. But because the fetus’s lungs floated, the autopsy concluded that the baby had been born alive and that Maria Teresa had killed it. She was sentenced to forty years in prison. This past May a judge reviewed the evidence and ordered her release. The state prosecutor appealed the decision, saying that he had not used sound legal judgment.

The women most harmed by abortion laws are poor. It’s an open secret that wealthier women have access to abortions.

Activists like Garcia often point out that the women most harmed by abortion laws are poor. It’s an open secret that wealthier women have access to abortions in private hospitals. Women who can’t afford such treatments buy pills online and on the black market. Sometimes, they have support. “I work with a network that helps women,” an activist who asked not to be named told me. She refers them to gynecologists who can help them if something goes wrong. But such abortions are risky. At least 11 percent of illegal abortions in El Salvador end in the death of the mother, according to Amnesty International. (By contrast, fewer than 1 percent of women who take medication to end early-stage pregnancies experience complications.) Zika has pushed more women toward illegal abortions. A study of abortion medications ordered from Women on Web, an online provider of abortion pills, found that the numbers of pills ordered in El Salvador had gone up by 35.6 percent since the beginning of the epidemic.

***

Before 1998, abortion was legal in El Salvador when the woman or baby’s health was threatened, or when rape or incest had occurred. Illegal abortion was rarely prosecuted. But starting in the mid-1990s, the right began a campaign to change the law. Pope John Paul II had made family planning a large part of his term. He spoke harshly about abortion and family planning, which the Vatican called “cultural imperialism.” At the same time, the country was recovering from a brutal war that ended in 1992 and left tens of thousands dead and entire communities massacred. Now the two sides of the conflict, the right-wing ARENA party associated with the military and the FMLN, left-wing former guerillas, would have to share the legislative assembly. Religious right-wing groups like Sí a La Vida (“Yes to Life”) began to advocate for the protection of unborn babies.

When the women’s movement tried to propose a bill reducing the restrictions on abortion access in 1995, the right wing fought back. Editorial after editorial in the papers emphasized the evil of abortion. “It’s time that Salvadorians be Salvadorians, that we think like Salvadorians and that we act as such; that we continue saying to heaven ‘yes to life’ and a decisive no to abortion.” In 1997, legislation removed the three exceptions, making any abortion illegal. A few years later, the Constitution was amended to highlight the country’s pro-life stance. The first article states that the state recognizes personhood “from the moment of conception.” The law also made it illegal to have or perform an abortion, and for years, feminists rarely spoke about it. “There was a self-censorship of the movement,” says Morena Herrera, an ex-guerilla fighter and activist in Agrupación.
Raquel 23, in blue, is having her first child. She is accompanied by her mother. She hasn’t felt her baby move in a few days and is concerned about the labor.

Prohibition against abortion is so deeply woven into the fabric of contemporary El Salvador, however, that it’s almost hard to imagine what would have the power to reverse the ban. Sí a La Vida’s co-founder, Julia Regina de Cardenal, is Salvadorian and a recognized figure in Salvadorian media. A recent TV news spot celebrates her as a “Defender of Life” who has long campaigned for family values in El Salvador. Her husband, Luis Cardenal, is a politician who has run ANEP, the association of private businessmen. Their influence pervades San Salvador. A common Sí a La Vida placard on bus stops and bridges shows a noose shaped like a baby. “With an abortion, you die inside,” it reads. Classifieds in newspapers advertise for help with unwanted pregnancy. When one calls, they lead one back to Sí a La Vida’s offices, a forbidding building surrounded by barbed wire, and guarded, like many Salvadorian establishments, by a man with an assault rifle. Sí a La Vida emphasized in a statement to The Nation that they “offer help to mothers with unplanned pregnancies” and says it has received threats.

Sí a La Vida is the local affiliate of Human Life International, an American anti-abortion organization founded by Paul Marx, who once denounced a conspiracy of Jewish doctors who, he claimed, promoted abortion. (“We haven’t funded them for some time, if ever” specifies Stephen Phelan, Director of Mission Communications for the group.) It has ties with Alliance Defending Freedom, a conservative Christian non-profit, to run an exhibition discrediting Planned Parenthood.

Although the pope himself has suggested that contraception might be acceptable in cases of Zika, the crisis has not softened de Cardenal’s tone. “The pro-abortion lobby is exploiting this health crisis to legalize the abortion industry,” she told the Catholic News Agency.

A few weeks ago, FMLN member Lorena Peña introduced legislation to allow access to abortion for women who have been raped or who might be at risk, as well as minors. “Many women in our country must confront high-risk pregnancies, where their health and lives are at risk, since…a fundamentalist approach punishes all forms of interruptions of pregnancy, even when it is the only option to preserve the health and life of the pregnant mother,” she stated upon introducing the law. But the FMLN does not have enough seats to make it pass. “For a law to change, we need to have the votes of all the congress, or the majority of congress. The right-wing party is completely against legalized abortion,” González said when we talked over the summer.

***

For now, all that health professionals can do is try their best within the confines of the law. Doctors, including Dr. Guidos, have been working with PASMO, a family planning NGO, and the ministry of health to educate other gynecologists on how to promote women’s well-being within the law’s narrow possibilities. A lawyer, sometimes Muñoz, talks with them to ensure that they know that the law is on their side. “Most doctors think they need to accuse,” he says. In fact, it’s their duty not to say anything. Salvadorian standards of professional secrecy mean that doctors cannot testify against their patients, he says. He talks to groups of 20 or 30, trying to get to anyone who might be in the position to report a woman—gynecologists, nurses, health-care workers. He reads them the penal code and teaches them about its protections. “Patient-doctor confidentiality is like a shield that they have,” he says. In the workshops, a doctor talks about the ethics of abortion, making sure that all are aware of the tenets of the hippocratic oath. No matter one’s religion, “the objective is to help the patient,” Guidos says. Doctors must remember that “in no moment are we authorized to judge.”